“Beach reading for lawyers”

Posted Tue, June 4th, 2013 11:46 am by Kali Borkoski

After delivering a fiery dissent from Monday morning’s decision in Maryland v. King, upholding the constitutionality of a Maryland law that authorizes DNA testing for individuals arrested for “serious offenses,” on Monday afternoon Justice Antonin Scalia doffed his black robe and returned to the courtroom for a very different event: the thirty-eighth Annual Meeting of the Supreme Court Historical Society, where he joined his co-author, Bryan Garner, to discuss their latest book together, Reading Law: The Interpretation of Legal Texts.

“Language matters,” Garner began the lecture, explaining why Scalia and he had spent three-and-a-half years, and over two hundred hours together, writing about canons of interpretation and textual meaning. For an hour, the pair volleyed back and forth discussing a few highlights and sharing several interesting nuggets from their book and the writing process. They disclosed, for example, that one of their only disagreements centered on how to pronounce noscitur a sociis – the “associated-words” canon – a dispute which may not be all that surprising when you consider that both men describe themselves not only as textualists but also as stylists. (On the latter point, Garner quipped that they wanted to create “beach reading for lawyers.”)

Scalia and Garner also told their audience that they had made a one-dollar bet on the ejusdem generiscanon – specifically, whether at least half of the eight hundred lawyers at an American Bar Association book talk would know what the canon means . And although Justice Scalia jocularly asserted that “[i]t is malpractice not to know this canon,” he reported that the number of attorneys at the ABA event who indicated that they knew the meaning of the canon was in the single digits.

Scalia and Garner also discussed the fallacies that they exposed in their book, including the “notion that the spirit of a statute should prevail over its letter.” Garner explained that, while perusing used books in Michigan, he discovered an epigram on this fallacy that could sum up much of the book: “There is nothing more dangerous than the common axiom: the spirit of the law is to be considered. To adopt it is to give way to the torrent of opinions.” Justice Scalia weighed in on another fallacy – “the notion that words should be strictly construed” – by proclaiming that he was “not a strict constructionist. They give a bad name to textualists.” You have to be reasonable, he concluded.

Just as the pair reached the subject of legislative history, Garner observed that their “yellow light is on.” “I could spend an hour on legislative history,” Justice Scalia mused with a sigh. Instead, to demonstrate another fallacy – that “committee reports and floor speeches are worthwhile aids in statutory construction” – Scalia and Garner read together from a 1982 exchange between two Senators: William Armstrong of Colorado and Bob Dole of Kansas, then the Chairman of the Senate Finance Committee:

Mr. Armstrong: Mr. President, will the Senator tell me whether or not he wrote the committee report?

Mr. Dole: Did I write the committee report?

Mr. Armstrong: Yes.

Mr. Dole: No; the Senator from Kansas did not write the committee report.

Mr. Armstrong: Did any Senator write the committee report?

Mr. Dole: I have to check.

Mr. Armstrong: Does this Senator know of any Senator who wrote the committee report?

Mr. Dole: I might be able to identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked…

Mr. Armstrong: Mr. President, has the Senator from Kansas, the Chairman of the Finance Committee, read the committee report in its entirety?

Mr. Dole: I am working on it. It’s not a bestseller, but I am working on it.

Before Scalia and Garner could summarize their remarks at the end of the book about “the Living Constitution,” the proverbial red light was on, and their time had expired.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.